Controversy #2 - The U.S. Constitution Sucks

User avatar
blindpig
Posts: 10587
Joined: Fri Jul 14, 2017 5:44 pm
Location: Turtle Island
Contact:

Controversy #2 - The U.S. Constitution Sucks

Post by blindpig » Tue Feb 11, 2020 12:10 pm

Controversy #2 - The U.S. Constitution Sucks

anaxarchos
07-23-2007, 01:01 AM

No, really. Even as a bourgeois-democratic document, it really, really sucks. I'm talking about more than the obvious here: more than about how juridical and political "rights" don't impinge on economic society in the worlds richest country, more than about the institutionalization of only two parties, more than the observation that the commoner's House of Lords (the Senate) has more power than the legislature, more than the meaning of why it takes several more amendments 80 years after the first ten to establish that former slaves count as "humans" too and are candidates for "Human Rights" (and another 100 years to implement even those), and more than the two hundred other details that have become obvious in the last few years, such as the inability to recall a government except by criminal trial or coup.

I am talking about the fact that Bush has exposed the absolute power of the "presidency", a power hidden only because of the collusion of the major political parties for the entire life of the Republic. It appears that in this system, there are no limits whatever on the powers of the presidency save elections every 4 years (which would not have counted as "democracy" even in the 18th century), and the only reason that it even appeared that there were any such limits was exclusively the result of a voluntary super-constitutional etiquette practiced by the political participants but in no way enshrined in law. All it took was one asshole to show it all up.

Let me say it as controversially as possible - The constitution wasn't usurped, wasn't diluted, wasn't undermined; it was always like this.

Which means that the U.S. is governed by among the most primitive of current day political charters and that there is much less democracy here than in most recently established bullshit quasi-democracies, even by bourgeois standards... and this is said by someone who thinks that "democracy" don't mean shit, even when it's real.
"There is great chaos under heaven; the situation is excellent."

User avatar
blindpig
Posts: 10587
Joined: Fri Jul 14, 2017 5:44 pm
Location: Turtle Island
Contact:

Re: Controversy #2 - The U.S. Constitution Sucks

Post by blindpig » Tue Feb 11, 2020 12:12 pm

Two Americas
07-23-2007, 01:56 AM

Sure it sucks. No news there. But the Constitution is like a contract with management. Just because your contract sucks, that doesn't mean you don't go on strike when management refuses to honor it because, after all, it sucks and so therefore isn't worth striking over. We always get a bad contract with management, but generally any contract is better than none at all. Before we tear up the existing contract, let's make sure we have the leadership and strength to demand a better one. That takes us right back to rabble-rousing, organizing, and resisting. That is what is always has and always will take, and the fight is forever. We seem to be permanently paralyzed and unwilling to get started on the rabble-rousing part of the process.

The BOR and the DOI are a good starting place for the new contract, in my opinion.

But as I said on another thread, Chlamor was right and I was wrong (on everything important) and I am not going to argue against the necessity for radical and profound social revolution. Reading a history of the Potawatomi in present day Michigan and the story of their encounter with Europeans, stumbling on the Dead Zone in the middle of the Minnesota countryside in the form of suburban Minneapolis, and seeing the wealthy and powerful at play first hand in Aspen - quite a month - has given me a new perspective. Things most definitely suck.
"There is great chaos under heaven; the situation is excellent."

User avatar
blindpig
Posts: 10587
Joined: Fri Jul 14, 2017 5:44 pm
Location: Turtle Island
Contact:

Re: Controversy #2 - The U.S. Constitution Sucks

Post by blindpig » Tue Feb 11, 2020 12:14 pm

Kid of the Black Hole
07-23-2007, 03:29 AM
Sure it sucks. No news there. But the Constitution is like a contract with management. Just because your contract sucks, that doesn't mean you don't go on strike when management refuses to honor it because, after all, it sucks and so therefore isn't worth striking over. We always get a bad contract with management, but generally any contract is better than none at all. Before we tear up the existing contract, let's make sure we have the leadership and strength to demand a better one. That takes us right back to rabble-rousing, organizing, and resisting. That is what is always has and always will take, and the fight is forever. We seem to be permanently paralyzed and unwilling to get started on the rabble-rousing part of the process.

The BOR and the DOI are a good starting place for the new contract, in my opinion.

But as I said on another thread, Chlamor was right and I was wrong (on everything important) and I am not going to argue against the necessity for radical and profound social revolution. Reading a history of the Potawatomi in present day Michigan and the story of their encounter with Europeans, stumbling on the Dead Zone in the middle of the Minnesota countryside in the form of suburban Minneapolis, and seeing the wealthy and powerful at play first hand in Aspen - quite a month - has given me a new perspective. Things most definitely suck.
Right, its not so much that the relations within the contract are unjust -- provided that all parties have actually stipulated to it of course -- everything expected of each party is layed out very clearly. In much the same way one can't make an immanent critique of capitalism.

When someone agrees to work for a given wage and is paid that wage under the agreed upon working conditions, where is the injustice? Well, that happens when one side starts tweaking things for their own benefit or not fully honoring their end of the deal or manipulating the rules so as to ensure a better deal for themselves.. If this were the extent of the problem, then the proper legal and political recourses are available (employer not living up to their end of the bargain or maybe discriminating? Take 'em to court! Pass more legislation! Appoint an oversight body!)

That's a pretty fucking stilted version of "justice". The more salient critique is that the system sucks -- NOT corrupted or in need of some mythical Reform -- a mouthful of huge honking hairy donkey balls.

Secondly, the "social contract" is obscurantism and a misnomer. What it really should call itself is the individual Contract because it is all a JS Mill dream world where each one of us is a proto-capitalista. We are all SELLING a product, right? Thats how we talk and think when we consider our resumes and education level and work experience and demeanor and appearance and hygiene and even what we've "accomplished" in the time we can't document we were tethered to the desk or the machine or register or whatever else.

Somehow this individualist arrangement generates the trappings of a "just" society?? Somehow commodifying everything ie subsuming it to profit motive -- even fucking food -- is the pathway to the greater good for all. EVERYTHING is transactional by the way -- consider criminal law. The amount of punsihment is meted out to match the amount of offense (again assuming the system to be functioning properly -- ie no one bending the rules or whatnot)

So you see the term justice means exactly shit under this consideration. In another epoch pedophilia was no big deal. Now its near grounds for a lynching. Shari'a law. The Ten Commandments. The Code of Hammurabi. All of these leave the unspoken question of equality and subsistence.

If all basic needs are not met, surely no one can argue there is equality. In a sane world no one would argue it was "just" either but we know how that goes. Instead we are served up pablum like "the greatest good for the greatest number" (democracy/utilitarianism) that barely tries to hide its more sinister agenda. Leftovers are inevitable..entropy happens. (See Mike, its not just Eastern philosophy we also get to mix in some psuedo-science and armchair epistemology ;) )

Sorry, this is also a response to Mike's excellent Hidden Agenda post I guess.

But they don't stop there. They start parsing "Basic Needs" too. Mike, You probably missed the guy who was here a few weeks ago claiming (among other things) that one could easily get by as a grifter taking advantage of welfare and public services, no problem. Food, water, shelter (optional)..Basic Needs means little more than those. Forget recreation, forget healthiness, forget learning and access to knowledge, forget socialization and culture. You are what you eat and, maybe, what you shit -- like a dog who needs pooper-scoopin'.

The fact that the constitution and Union contracts and all the rest are so goddamn onesided has nothing to do with collusion (conspiracy), malevolence, cheats, lax enforcement and oversight or any of that shit. The very premise it rests on was one-sided from the start.

And THAT is why Chlamor's right, that's why it time for a goddamn Revolution. No more garbled mealy-mouthed yeah-buts, no more sweaty palmed hand-wringing, writhing, twisting, and contorting. Those things already have a team of professionals to act them out and throw in some misplaced ennui on the side (liberals). Even inconclusive, perpetually furtive theorizing that does nothing but paralyze us like Super Mario tentatively trying to land that perfect jump is getting in the way. If liberals are keyboard commandos, the greater left still does little more than hide what weenies they've become behind a facade of tough typing. Do we REALLY need a sophisticated critique of neoclassical economics to tell us that A Wealth Of Nations simply presaged a genuflecting Darth Vader rasping "What is they bidding master?"

A parting simile:

Genital warts, burning during urination :: Herpes

George Bush :: Capitalism
"There is great chaos under heaven; the situation is excellent."

User avatar
blindpig
Posts: 10587
Joined: Fri Jul 14, 2017 5:44 pm
Location: Turtle Island
Contact:

Re: Controversy #2 - The U.S. Constitution Sucks

Post by blindpig » Tue Feb 11, 2020 12:15 pm

PPLE
07-23-2007, 10:52 AM

Amendment XXVII (the Twenty-seventh Amendment) is the most recent amendment to be incorporated into the United States Constitution, having been ratified in 1992, more than 202 years after its initial submission in 1789.

“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”

This amendment to the United States Constitution provides that any change in the salary of members of United States Congress may only take effect after the next general election. Sometimes called the "Congressional Compensation Amendment of 1789", the "Congressional Pay Amendment", and the "Madison Amendment", it was intended to serve as a restraint on the power of Congress to set its own salary—an obvious potential for conflict-of-interest. Since its 1992 adoption, however, this amendment has not hindered members of Congress from receiving nearly annual pay raises, characterized as "cost-of-living adjustments" (COLAs), rather than as pay raises in the traditional sense of the term. The federal courts have ruled in cases brought under the amendment, that a COLA is not the same thing as a pay raise. Hence, members of Congress have been able to obtain increases in compensation without triggering the restrictions which this amendment seeks to impose. It should be pointed out that it is Congress that determines whether federal judges will receive an increase in their salaries—the only limitation being that Congress is forbidden to ever reduce judicial compensation. Additionally, retirement benefits of federal judges are linked with those of members of Congress. In the case of Schaffer v. Clinton (2001), the District of Columbia Circuit Court of Appeals ruled that the 27th Amendment does not affect annual Congressional Cost of Living Increases (COLI). The United States Supreme Court, however, has never ruled on this specific issue. - wiki

__________________________________

Helluva deal.
"There is great chaos under heaven; the situation is excellent."

User avatar
blindpig
Posts: 10587
Joined: Fri Jul 14, 2017 5:44 pm
Location: Turtle Island
Contact:

Re: Controversy #2 - The U.S. Constitution Sucks

Post by blindpig » Tue Feb 11, 2020 12:16 pm

chlamor
07-23-2007, 02:09 PM

Look the folks that get warm and fuzzy about the constitution are the same folks who believe the America Great Nation lie.

It's primarily a document to establish State control over land. A few bonus bits are thrown in for the industrious types who assist in this "noble" project.

Cumulative right from the start.

George Mason, a wealthy Virginia planter in colonial times and a fervent backer of American "independence", wrote that "all men are born equally free and independent, and have certain inherent natural rights . . . among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety."

Mason wrote these words in his original draft of the Virginia Declaration of Rights. Several other colonies drafted similar language, and the nation's "founders" also borrowed from this document in drafting the Declaration of Independence and the Constitution's Bill of Rights.


Image
"There is great chaos under heaven; the situation is excellent."

User avatar
blindpig
Posts: 10587
Joined: Fri Jul 14, 2017 5:44 pm
Location: Turtle Island
Contact:

Re: Controversy #2 - The U.S. Constitution Sucks

Post by blindpig » Tue Feb 11, 2020 12:19 pm

anaxarchos
07-23-2007, 02:59 PM
The fact that the constitution and Union contracts and all the rest are so goddamn one sided has nothing to do with collusion (conspiracy), malevolence, cheats, lax enforcement and oversight or any of that shit. The very premise it rests on was one-sided from the start.

And THAT is why Chlamor's right, that's why it time for a goddamn Revolution. No more garbled mealy-mouthed yeah-buts, no more sweaty palmed hand-wringing, writhing, twisting, and contorting. Those things already have a team of professionals to act them out and throw in some misplaced ennui on the side (liberals). Even inconclusive, perpetually furtive theorizing that does nothing but paralyze us like Super Mario tentatively trying to land that perfect jump is getting in the way. If liberals are keyboard commandos, the greater left still does little more than hide what weenies they've become behind a facade of tough typing. Do we REALLY need a sophisticated critique of neoclassical economics to tell us that A Wealth Of Nations simply presaged a genuflecting Darth Vader rasping "What is they bidding master?"

Yeah, but... it's not where I was going. Actually, they have always debated whether a political charter is a "contract" at all (with apologies to John Locke). Whatever it is, it is clearly different from a labor contract which seems to come from pre-democratic forms, i.e. because modern political constitutions dictate almost nothing on the relationship between "free" labor and capital, these fall back on the individual chartered rights of feudalism, negotiated independently and set by the "balance of power" at the given moment.

I was going for something much more "timely": the "Unitary Executive" + a "Strict Constructionist Judiciary". I always hesitate to talk about shit like this because they haven't passed from the buzzword and sound bite stages yet. The current outrage at the "excesses" and "unlawfulness" of the Bush regime are actually clouding over one of the more important political debates in recent American history. If I can translate the legalese, the motivation is a conservative (thus far, at least) concern that democratic artifacts in the American social fabric threaten to frustrate elements of American Policy, most importantly with regard to imperialist foreign policy but on many other fronts as well (and these "pressures" will only increase as U.S. demographics continue to change). The solution of the "Units" is to unsentimentally restate the elements of the U.S. political system without regard to the lyrical poetry that is normally intertwined with American civics. In a phrase, the assertion is that the "success" of America is not because of existence of "Freedom, Liberty, and Democracy", but because of their absence. The supporting argument is that from the standpoint of the constitution, the extent of "democracy" is really confined to the election of a president every four years with whom virtually the whole of state authority resides. Only on issues of property rights and on the gross allocation of monies do either of the other two "branches" have the authority to impinge on the presidency, and this on very narrowest of grounds. The misunderstanding associated with various theories of "checks and balances", etc., is fundamentally in the confusion of the etiquette of political power with its fundamental underpinnings. In fact, in each case in which "presidential power" exercised in defiance of the legislature or judiciary has actually been tested in the courts against it's constitutional basis, it has been upheld... save when it directly infringed on private property (i.e. Truman's "federalizing" of the Steel Industry).

While this "theory" is universally scorned by the "liberal establishment", it has the side effect of explaining U.S. judicial history (and the continuous violation of "rights", without sanction, whenever they actually matter) in a way that makes the usual, "we got carried away... we're sorry", narrative look ridiculous. Again, in a phrase, the argument is that there is a hole in the Constitution big enough to drive a cruise ship through and, "'we' made it that way because 'we' like it that way".

Anyone interested in reading about this in the coldest terms possible can look here:

The Unitary Executive During the Third Half-Century, 1889-1945, Yoo, Calabresi, and Nee, Notre Dame Law Review, Vol. 80, November 2004
http://papers.ssrn.com/sol3/papers.cfm? ... _id=559581 (http://papers.ssrn.com/sol3/papers.cfm? ... _id=559581)

The Unitary Executive in the Modern Era, 1945-2004, Yoo, Calabresi, and Colangelo, Iowa Law Review, Vol. 90, No. 2, p. 601, 2005
http://papers.ssrn.com/sol3/papers.cfm? ... _id=690822 (http://papers.ssrn.com/sol3/papers.cfm? ... _id=690822)


The executive power is better to be trusted when it has no screen. Sir, we have a responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes... far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment

Image
"There is great chaos under heaven; the situation is excellent."

User avatar
blindpig
Posts: 10587
Joined: Fri Jul 14, 2017 5:44 pm
Location: Turtle Island
Contact:

Re: Controversy #2 - The U.S. Constitution Sucks

Post by blindpig » Tue Feb 11, 2020 12:20 pm

Kid of the Black Hole
07-23-2007, 03:23 PM

Huh

You are really are going toward investigatvie journalism aren't you. That sounded more like a Chlamor post. I did sort of detect the direction you were going but


I always hesitate to talk about shit like this because they haven't passed from the buzzword and sound bite stages yet.

I've never seen how it was cvery onstructive to claim George Bush = King since it mainly amounts to the hysterics you mention like "OMG, we've got to restore the rule of law!!!". I do see your point though, which is reinforced by the heavy attempts to obscure that very point (ie the endless reverence for checks and balances, the "fortuitious" development of a strong and assertive SCOTUS that never actually seems to assert itself contraposed to the executive, the constant appeals to the authority of Congress etc).

To some extent this has been true and even tacitly acknowledged for a while -- especially as it comes to declarations of war. Of course now we have people (especially conservatives) out and out SAYING that freedoms need to be "restricted" for the good of, well, freedom. That I suppose is new, at least rhetorically.

Are you sure, though, that you want to claim Bush has placed himself anymore above the law than say Reagan? I am honestly asking because I don't know..my impression would be no but it sounds like you are digging into this in depth.

What point are you hoping to hammer home by claiming there is a Unitary Executive? Liberals would obviously take it as confirmation of their own nutty theory that George Bush is decadently running amok..or Dick Cheney..and will never acknowledge that feature to be "built-in". I mean, if Reconstruction isn't enough to inform us on tokenism, what is?
"There is great chaos under heaven; the situation is excellent."

User avatar
blindpig
Posts: 10587
Joined: Fri Jul 14, 2017 5:44 pm
Location: Turtle Island
Contact:

Re: Controversy #2 - The U.S. Constitution Sucks

Post by blindpig » Tue Feb 11, 2020 12:23 pm

PPLE
07-23-2007, 03:42 PM
I was going for something much more "timely": the "Unitary Executive" + a "Strict Constructionist Judiciary". I always hesitate to talk about shit like this because they haven't passed from the buzzword and sound bite stages yet. The current outrage at the "excesses" and "unlawfulness" of the Bush regime are actually clouding over one of the more important political debates in recent American history. If I can translate the legalese, the motivation is a conservative (thus far, at least) concern that democratic artifacts in the American social fabric threaten to frustrate elements of American Policy, most importantly with regard to imperialist foreign policy but on many other fronts as well (and these "pressures" will only increase as U.S. demographics continue to change). The solution of the "Units" is to unsentimentally restate the elements of the U.S. political system without regard to the lyrical poetry that is normally intertwined with American civics. In a phrase, the assertion is that the "success" of America is not because of existence of "Freedom, Liberty, and Democracy", but because of their absence. The supporting argument is that from the standpoint of the constitution, the extent of "democracy" is really confined to the election of a president every four years with whom virtually the whole of state authority resides. Only on issues of property rights and on the gross allocation of monies do either of the other two "branches" have the authority to impinge on the presidency, and this on very narrowest of grounds. The misunderstanding associated with various theories of "checks and balances", etc., is fundamentally in the confusion of the etiquette of political power with its fundamental underpinnings. In fact, in each case in which "presidential power" exercised in defiance of the legislature or judiciary has actually been tested in the courts against it's constitutional basis, it has been upheld... save when it directly infringed on private property (i.e. Truman's "federalizing" of the Steel Industry).

While this "theory" is universally scorned by the "liberal establishment", it has the side effect of explaining U.S. judicial history (and the continuous violation of "rights", without sanction, whenever they actually matter) in a way that makes the usual, "we got carried away... we're sorry", narrative look ridiculous. Again, in a phrase, the argument is that there is a hole in the Constitution big enough to drive a cruise ship through and, "'we' made it that way because 'we' like it that way".

Anyone interested in reading about this in the coldest terms possible can look here:

The Unitary Executive During the Third Half-Century, 1889-1945, Yoo, Calabresi, and Nee, Notre Dame Law Review, Vol. 80, November 2004
http://papers.ssrn.com/sol3/papers.cfm? ... _id=559581 (http://papers.ssrn.com/sol3/papers.cfm? ... _id=559581)

The Unitary Executive in the Modern Era, 1945-2004, Yoo, Calabresi, and Colangelo, Iowa Law Review, Vol. 90, No. 2, p. 601, 2005
http://papers.ssrn.com/sol3/papers.cfm? ... _id=690822 (http://papers.ssrn.com/sol3/papers.cfm? ... _id=690822)


The executive power is better to be trusted when it has no screen. Sir, we have a responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes... far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment

Image
Interesting to note that one of the authors of the papers you, and others studying the matter, cite is none other than the brother of the man who has gained significant fame for his advocacy of the so-called unitary executive.

I could see in your OP that was what you were alluding to, although I am too lightweight a thinker to superimpose the equally au courant 'strict constructionist' concept on to this idea of the democratically elected king. Perhaps you can share with us some of your thoughts on the interplay between these two.

On the whole, it seems to me that the encroachment of executive power, however asymptotic these days, has been a project of some decades.
"There is great chaos under heaven; the situation is excellent."

User avatar
blindpig
Posts: 10587
Joined: Fri Jul 14, 2017 5:44 pm
Location: Turtle Island
Contact:

Re: Controversy #2 - The U.S. Constitution Sucks

Post by blindpig » Tue Feb 11, 2020 12:25 pm

anaxarchos
07-23-2007, 03:54 PM
Huh

You are really are going toward investigatvie journalism aren't you. That sounded more like a Chlamor post. I did sort of detect the direction you were going but


I always hesitate to talk about shit like this because they haven't passed from the buzzword and sound bite stages yet.

I've never seen how it was cvery onstructive to claim George Bush = King since it mainly amounts to the hysterics you mention like "OMG, we've got to restore the rule of law!!!". I do see your point though, which is reinforced by the heavy attempts to obscure that very point (ie the endless reverence for checks and balances, the "fortuitious" development of a strong and assertive SCOTUS that never actually seems to assert itself contraposed to the executive, the constant appeals to the authority of Congress etc).

To some extent this has been true and even tacitly acknowledged for a while -- especially as it comes to declarations of war. Of course now we have people (especially conservatives) out and out SAYING that freedoms need to be "restricted" for the good of, well, freedom. That I suppose is new, at least rhetorically.

Are you sure, though, that you want to claim Bush has placed himself anymore above the law than say Reagan? I am honestly asking because I don't know..my impression would be no but it sounds like you are digging into this in depth.

What point are you hoping to hammer home by claiming there is a Unitary Executive? Liberals would obviously take it as confirmation of their own nutty theory that George Bush is decadently running amok..or Dick Cheney..and will never acknowledge that feature to be "built-in". I mean, if Reconstruction isn't enough to inform us on tokenism, what is?
Good questions, all... My objective was not to play "jailhouse lawyer". The thing is changing before our eyes, though. In some ways, it is just like religion. After a hundred years of, "well, err... maybe it wasn't seven days... it was figurative days, and it's kinda a parable, you know?", suddenly we get, "5000 years to the day and everyone had dinosaurs as pets and they were all named "dino" and Darwin is burning in hell...". This counts as a "roots" journey for the "constructionists". Kelley is an absolute apologist but you can see his drift below:

Christopher S. Kelley, Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency, 2005
http://www.cageprisoners.com/downloads/kelleypaper.pdf



There are some who argue that the unitary executive has existed since the Washington administration. In particular, Steven Calabresi and Christopher Yoo have launched an ambitious project (in part with other scholars) to date the unitary executive to the Washington administration. They attempt to examine a variety of presidential actions—the presidential removal power to the independent counsel statute—to highlight how presidents have always aggressively pushed the principles of the unitary executive. While others have challenged their argument, it is not my intent to use this paper to engage that debate. My purpose is to argue for the last 30 years, something changed within the American political environment that made it very difficult for any president to govern. And it is in this time period in which the unitary executive theory is the most explanatory.

I have argued in other places that the twin circumstances of Vietnam and Watergate profoundly changed the American presidency, over and beyond the other changes it brought to the political system. In one respect, the faith and trust placed into the presidency was broken as a result of the lies of Vietnam and Watergate. Congress unleashed an assault on presidential prerogatives, seeking to rein in the “imperial presidency.” It was up to some very creative people who worked either in the White House or in the Department of Justice (particularly the OLC) to fight back all of these attempts to strip the president of his powers. Thus by the end of the 1970s many feared that an imperial presidency had become an “imperiled” presidency.

On the other end, presidents were still expected to lead, but leading in this new environment would be nearly impossible. If the president would be unable to reach out to the Congress in the manner he once had, then he would have to turn inwards and govern through administrative actions. An administrative strategy would allow the president to accomplish through the executive branch agencies what he was unable to accomplish legislatively. Thus it was during this period that all sorts of creative “power tools” were used extensively—the executive order, administrative clearance, unilateral policy declarations, signing statements, and so forth.

The unitary executive has mostly been championed by the founding members of the “Federalist Society,” a group of conservative lawyers who nearly all worked in the Nixon, Ford, and Reagan White Houses and who understood the type of political climate the president operated in and understood what it took in order to succeed. Thus, the individuals who have written the most prolifically towards the unitary executive theory were also former members of the Reagan legal team—Calabresi, Ed Meese, Michael Stokes Paulsen, Douglas Kmiec, and Johnathan Yoo, to name a few.

Presidential Power: Hard or Soft?

The dominant explanation of presidential power still resides in Richard Neustadt’s “Modern Presidency,” with its emphasis on the ability of a president to bargain and persuade. Neustadt envisioned a weak president who was constantly under pressure from domestic interest groups, foreign governments, members of his own party, his cabinet appointees, the media, the American public, and especially the Congress. Even more problematic, the office of the presidency provided very few powers for the president to navigate this hostile terrain. Hence, power rested upon the ability of the person who occupied the office to see to it that others came to share his vision if the presidency was to be successful. Ever since the FDR presidency, presidential scholars have measured presidential power by the president’s standing with the public (public opinion polls) or his success in the Congress (number of members who vote with the administration’s plan). It was deemed a failure if a president had to rely upon the presidential veto since that indicated an inability of a president to bargain and persuade.

The unitary executive theory is fundamentally different. It assumes hostility in the external political environment and seeks to aggressively push the constitutional boundaries to protect the prerogatives of the office and to advance the president’s policy preferences—something Ryan Barilleaux terms “venture constitutionalism.”

We can witness the hard power of the unitary executive to protect the prerogatives of the presidency in such instances as the battle against the legislative veto, against comptroller general (an agent of Congress) involvement in executive branch affairs, and a battle against the attempt by Congress to establish executive branch departments and officers immune from presidential control. It also involves the unilateral attempt by the president to gain control over the executive branch regulatory process.


Part IV—Conclusion

This paper set out to explain a different theory of presidential power that would enhance our understanding of what has taken place in the presidency over the last 25 years. It was not the intent of this paper to make broad claims about the new dominant paradigm to understanding presidential behavior—rather, it has been my hope that an understanding of the unitary executive will help us understanding why presidents have behaved as they have when the ability to bargain and persuade has broken down.

To restate, the unitary executive argues that the president has aggressively pushed the boundaries of constitutional power in order to protect the prerogatives of the Office and to control the executive branch agencies. It has developed over the course of three presidencies—Reagan, Bush I, and Clinton. It has only been in the Bush II administration that the unitary executive has fully developed.

President Bush, since the first day of his presidency, has been very aggressive in his defense of presidential power, much to the dismay of his critics and opponents, who have underestimated his administration since the Supreme Court decision in “Bush v. Gore.”

Through the use of presidential signing statements, executive orders, and memoranda, the Bush administration has often governed unilaterally when faced with political and/or constitutional obstacles. While the “Modern Presidency” fails to explain such aggressive use presidential power, the unitary executive does not. I would expect that the theory will continue to be developed through the remainder of Bush’s second term in office, particularly as he comes to be seen more of a lame duck as the political spotlight moves on to the 2008 election. We only need to recall the dramatic use of executive power in the waning days of the Clinton administration to guess what the end of the Bush presidency will look like.

The unitary executive thesis helps us to understand presidential behavior across presidencies, which is an additional reason why we should understand its core tenets. In the first term of the Bush presidency there were a number of criticisms regarding the emergence of a “new imperial presidency.” The fact of the matter is, in the course of the Clinton administration the same sorts of criticism could be heard, only from a different group of opponents.

The problem in these idiosyncratic criticisms of the presidency is it fails to understand how and why presidents push the envelope of constitutional power. And the danger in this is that unilateral actions taken by a president that go unchecked establish a precedent for the benefit of future presidents. And when a precedent is established, the courts are reluctant to find the action unconstitutional if it has gone unanswered by the Congress.

Thus for the current Congress, while it may be seen as a plus to have a co-partisan in the White House who aggressively asserts constitutional power, the problem occurs in the future when their political fortunes turn and a Democrat comes to occupy the White House. Then any chance to check the presidency is difficult since a pattern has been established.

I hope that this paper serves as a signal to all of us interested in our constitutional system of separation of powers and presidential power, that this theory of the unitary executive will helps us understand the evolution of power over the past 25 years as well as why a president behaves the way he does when presented with obstacles in his path.

"Power Tools"?

Image
"There is great chaos under heaven; the situation is excellent."

User avatar
blindpig
Posts: 10587
Joined: Fri Jul 14, 2017 5:44 pm
Location: Turtle Island
Contact:

Re: Controversy #2 - The U.S. Constitution Sucks

Post by blindpig » Tue Feb 11, 2020 12:29 pm

anaxarchos
07-23-2007, 04:18 PM
Interesting to note that one of the authors of the papers you, and others studying the matter, cite is none other than the brother of the man who has gained significant fame for his advocacy of the so-called unitary executive.

I could see in your OP that was what you were alluding to, although I am too lightweight a thinker to superimpose the equally au courant 'strict constructionist' concept on to this idea of the democratically elected king. Perhaps you can share with us some of your thoughts on the interplay between these two.

On the whole, it seems to me that the encroachment of executive power, however asymptotic these days, has been a project of some decades.
The "constructionist" label is something of a misnomer. It is a reference to a "fundamentalist" reading of the Constitution. People like Scalia are theorists of the "unitary executive" and it largely arose from within the Federalist Society. The objective is to stop making the Constitution into a "living document" through modern "interpretation". "We liked the thing in all it's archaic 'goodness'". The interesting thing is that it gets attention in the realm of social policy but it is really driven by foreign policy (and various related issues, such as torture, spying, assassination, and so on).

As far as whether this is a new or an ancient understanding, take your pick. Yoo says, it's always been this way and does a pretty good expose in scholarly legalese ("What democracy?... shut the fuck up!"). Kelley takes the view that the shit hit the fan with Watergate and Vietnam and this is a new evolution ("venture constitutionalism") based on the understanding that no one trusts the presidency so power must be applied in a "hostile environment" - sort of a, "We lied and it's your fault... shut the fuck up!".

What made me put this up was that I was thinking about the "King George" mythology or "conspiracy theory" as KOBH mentioned and wanted to put it up against the "reality". Yep, the truth is worse.

Image
"There is great chaos under heaven; the situation is excellent."

Post Reply